The results from a breath test machine can have a major impact on a person’s life, and the use of technology  to determine whether someone is guilty of a crime should be evaluated diligently for its reliability.  This was the basis for a joint motion to challenge the scientific reliability of the breath test machines, particularly Draeger Alcotest 9510, used in Massachusetts.

On February 17, 2017, a much anticipated decision on the Consolidated Defendants’ Motion to Exclude Breath Alcohol Content Percentage Results Using the Alcotest 9510 and Any Opinion Testimony was decided by the Boston Municipal and District Court Departments.   This discussion is based on the Memorandum issued by the judges (I will refer to them as “the Court” for clarity) who considered the motion.  Hearings were held over several months and experts for both the defense and the Commonwealth testified.

The main issues before the Court  were “(1) whether the source code, as developed and implemented in the Alcotest 9510, reliably produces accurate results(source code is the computer program that runs the machine); (2) whether the Alcotest 9510 relies on flawed scientific theories regarding blood-to-breath ratio; (3) whether Office of Alcohol Testing (“OAT”) methodology relating to the Alcotest 9510 produces unreliable results; and (4) whether the Alcotest 9510 source code contains security vulnerabilities that make it susceptible to intentional manipulation that could produce unreliable results.”

The Court noted, “[r]emarkably, there were many areas in which the Commonwealth and defense experts agreed regarding the source code. Ultimately, however, they disagreed as to whether it was written in a manner that causes the Alcotest 9510 to produces reliable breath test results.”

The Court reviewed all of the evidence presented and summmarized its findings on each challenge and concluded:  “After weighing the testimony of each witness and considering the nature and context of the particular issues raised by the consolidated defendants, the Court is satisfied that the Alcotest 9510 source code is written and executed in such a manner that the device produces accurate and reliable results.”

The one exception was that “[t]he annual certification methodology employed by OAT from June, 2012 to September 14, 2014, based upon the evidence presented, did not produce scientifically reliable BAC results; however, the Commonwealth may demonstrate to the trial judge, on a case-by-case basis, that a particular Alcotest 9510 was calibrated and certified using scientifically reliable methodology, and thus that a particular BAC result is scientifically reliable.”

If you are charged with Operating Under the Influence, contact Attorney Michael Brothers at 508-944-3397.